View source for Variation of Probation Orders

{{Fr|Modification_des_ordonnances_de_probation}}
{{currency2|January|2016}}
{{LevelZero}}{{HeaderProbation}}
==General Principles==
{{seealso|Conditional Sentence Orders#Sentence Variations}}

A probation order may be varied at any time under s. 732.2(3). The offender, the Crown or the probation officer may apply to the sentencing judge. The application can be done "in chambers". 

{{quotation3|
732.2<br>
{{removed|(1) and (2)}}
; Changes to probation order
(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,
:(a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,
:(b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or
:(c) decrease the period for which the probation order is to remain in force,
and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed.

; Judge may act in chambers
(4) All the functions of the court under subsection (3) {{AnnSec7|732.2(3)}} may be exercised in chambers.
<br>
{{removed|(5) and (6)}}
{{LegHistory90s|1995, c. 22}}, s. 6; 
{{LegHistory00s|2004, c. 12}}, s. 12(E).
{{Annotation}}
|{{CCCSec2|732.2}}
|{{NoteUp|732.2|3|4}}
|{{terms-
|[[Criminal Courts#Sentencing Courts|court (s. 716)]]
|[[Definitions of Parties, Persons, Places and Organizations#Accused or Offender|offender (s. 2)]]
}}

}}

There is nothing in s. 732.2 that permits a court on its own accord to vary the conditions of probation while the accused is subject to the order.<ref>
{{CanLIIRP|H(PA)|52j3|1999 BCCA 194 (CanLII)|134 CCC (3d) 251}}{{perBCCA|Ryan JA}}<br>
</ref>

; "change"
Section 732.1 defines "change":
{{quotation2|
; Definitions
732.1 (1) In this section and section 732.2 {{AnnSec7|732.2}},<br>
'''"change"''', in relation to optional conditions, includes deletions and additions; (modification)
<Br>
{{removed|(2.1), (2.2), (3), (3.1), (3.2), (4), (5), (6), (7), (8), (9), (10), (11) and (12)}}
{{LegHistory90s|1995, c. 22}}, s. 6; 
{{LegHistory90s|1999, c. 32}}, s. 6(Preamble); 
{{LegHistory00s|2003, c. 21}}, s. 18; 
{{LegHistory00s|2008, c. 18}}, s. 37; 
{{LegHistory10s|2011, c. 7}}, s. 3; 
{{LegHistory10s|2014, c. 21}}, s. 2; 
{{LegHistory10s|2015, c. 13}}, s. 27.
{{Annotation}}
|{{CCCSec2|732.1}}
|{{NoteUp|732.1|1}}
}}

{{reflist|2}}

==Change in Circumstances==
A change in circumstances must be a change "relevant to [the] probation between the date of the initial sentence and the date of the application for the change."<ref>
{{CanLIIRP|Bennett|1k1pp|2005 ABCA 119 (CanLII)|196 CCC (3d) 218}}{{TheCourtABCA}}{{atL|1k1pp|10}} ("precondition to a change in the optional conditions of his probation is that there must be a change in circumstance relevant to his probation between the date of the initial sentence and the date of the application for the change")<br>
</ref>

A change in circumstances does not include the fact that the accused has aged and matured since the date of sentencing.<ref>
{{ibid1|Bennett}}{{atL|1k1pp|10}}<Br>
</ref>

{{reflist|2}}

==Procedure==
Where any terms of an order have been changed the judge must again comply with the requirements under s. 732.2(5) to properly explain the terms and remind them of their rights.<ref>
{{CanLIIRP|Knott|fs68p|2012 SCC 42 (CanLII)|[2012] 2 SCR 470}}{{perSCC-H|Fish J}}{{atL|fs68p|69}} ("... as the procedure contemplated by s. 732.2(3) is properly applied where an additional sentence overtakes a probation order, it is appropriate to remind the offender of his or her rights in this regard at the time of the subsequent sentencing."<Br>
</ref>

{{reflist|2}}